Saturday, July 19, 2014

A bad case of the slows in India

The Times of India has this story about the case of Colonel R.B.S. Bisht of the Indian Army. He was accused of procurement irregularities 20 years ago. At issue is whether, having retired, he remained subject to court-martial jurisdiction. The High Court stayed proceedings based on his jurisdictional challenge, then apparently sat on (or misplaced?) the case for years. When the Armed Forces Tribunal was created, Col. Bisht's challenge was transferred to it. Eventually that court allowed his court-martial to proceed, leading to a dismissal from the service -- meaning he would lose his retirement benefits. Most recently, the High Court has refused to intervene because the Chief of Army Staff's post-trial review of the court-martial has not been completed.

President Abraham Lincoln once said that General George B. McClellan had a case of "the slows." The phrase comes to mind in considering Colonel Bisht and the incomprehensibly slow pace of Indian military justice and direct and collateral review in the civilian courts. No, this is not like keeping people on death row for extraordinary periods, but Jarndyce v. Jarndyce-paced justice is still a serious matter. In a democratic society, military personnel are entitled to have confidence that judicial review will be available within a reasonable time.

If friendly criticism can be offered from a distance, someone has to take charge of the problem of systemic delay. Col. Bisht's case -- whatever the merits -- represents a failure by the institutions of Indian justice. Nor is it the only instance in which delays of this magnitude have occurred in the context of military justice. Indeed, it took decades for the Indian Parliament to act on the long overdue suggestion that it create an appellate military court.

If this harsh judgment is off base, perhaps readers in India will tell us why. Please post any comments using your real name.

Comments are also invited on India's assertion of court-martial jurisdiction over retirees. It's not the only country to do so (the United States is another), but the practice is strongly disfavored under international human rights principles. Could Col. Bisht have been prosecuted, after retirement, in the civilian courts?